Citizens’ attempt to amend City’s Land Development Code fails

Submitted by Eric Bartelt
June 18, 2015 9:40 a.m.

An overflow crowd greeted Fernandina Beach City Commissioners when they arrived for their regularly scheduled June 16th meeting. All seats in the Commission Chambers were filled 45 minutes before the meeting began, requiring many other attendees to listen from outside. What drew so many citizens was an Amendment to the City’s Land Development Code (LDC) that prohibited introduction of certain hazardous uses and materials into the City.

LDC 1

The Amendment was created in response to the recently created Port of Fernandina Master Plan, which includes a variety of industries the Port could embrace in the future, including facilities for the bulk storage of flammable liquids, a coal transfer station, a fruit and vegetable fumigation facility, a liquid natural gas fueling terminal, a petroleum refinery, a phosphate shipping terminal, and a terminal for large cruise ships.

LDC 5 Chip RossThe Amendment being discussed by the Commission was a revised version that had previously included a longer list of hazardous materials and uses. Dr. Chip Ross developed the list and has revised it over time. The Amendment narrowly failed when it was reviewed by the Planning Advisory Board in April, after several PAB subcommittee meetings, so Mr. Ross revised the list again, after consulting various stakeholders, in hopes that it would have a better chance of passing when it came before the City Commission.

The final version of the Amendment lists five uses that would be prohibited: A coal transfer facility, a fruit and vegetable fumigation facility, a petroleum refinery, a phosphate shipping terminal, and a cruise ship terminal for more than 500 passengers. While these five uses are included in the Port’s Master Plan, they are not listed in the City’s Land Development Code Table of Land Uses, and are therefore prohibited. The LDC does contain a provision, however, that allows the City Manager to interpret the Code and determine whether a particular use is allowable or not. The Amendment, according to Mr. Ross, would eliminate that provision and prevent the City Manager from making those decisions.

Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier.
Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier.

While the Amendment was created in response to the Port’s Master Plan, representatives from Rayonier and RockTenn spoke at the meeting, expressing their concern about the process by which the Amendment came about. While Rayonier and RockTenn may have no interest themselves in developing, say, a fruit and vegetable fumigation facility or a petroleum refinery, they were concerned about the relatively easy path someone can take, as demonstrated by Chip Ross’s efforts, to create Amendments to the Land Development Code prohibiting industrial uses that could restrict the mill’s processes, and ultimately their viability. Their concern is that in the future they may face more proposed Amendments, putting them in a position of having to “bargain away existing property rights on a proposal by proposal basis.” They view banning certain industries as a violation of their property rights. In addition, their concern is that the proposed LDC Amendment is too broad, that “omnibus revisions” like this may set a new vision for industrial development, all of which creates business uncertainty.

Currently, any citizen can apply to the City to make a Land Development Code change by paying a fee of $800 and presenting the proposed change before the Planning Advisory Board. With PAB approval and subsequent approval by the City Commission, the LDC change would come about. It appears that process is not sufficiently encompassing of stakeholders or rigorous enough to gain support from the mills. The mills have indicated that a more acceptable route would be to initiate changes through the EAR (Evaluation and Appraisal Report) process, which the Planning Dept. and the PAB conduct periodically to make changes to the Comprehensive Plan. The next EAR review will be in 2019.

Several people spoke in favor of the Amendment and several against it. Those opposed were primarily people who worked at either RockTenn or Rayonier, and they included Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier. Adding to their opposition to the process, they stressed the mills’ compliance with environmental regulations; their direct financial contributions to the community; their volunteer efforts; their overall economic benefit to the City and the potential dampening effect on economic development that such restrictions, and the controversy surrounding the issue, would cause. Others implied that such actions could lead to the mills closing here and moving to China. This, despite the fact that the Amendment was originally directed toward the Port and it’s Master Plan, not the mills. According to Mr. Ross, however, RockTenn has stated publicly at PAB meetings “they wish to have the ability to have a a coal transfer facility so they can import coal by ship or barge.”

LDC 9 Bruce
Richard Bruce, chair of the Ocean Highway & Port Authority addresses the commission.

Among those speaking in opposition to the the Amendment was Richard Bruce, Chair of the Ocean, Highway and Port Authority, which oversees Port activities. He said he was speaking only as a private citizen.

Those in favor of the Amendment cited the dire environmental consequences that such uses and materials could cause, either through accident or through the normal conduct of business. Chip and Faith Ross both showed slide presentations that included photos of water and beach pollution in other places caused by one of the uses – coal transfer facilities. Others alluded to the health impacts associated with coal, the need to protect the island’s quality of life and tourism industry and the legal defensibility of the Amendment. (Click here to view public comment, Item 8.5 Part 1 and 2.)

Several of those in favor of the Amendment expressed support for the mills, but drew a distinction between the importance of the mills to Fernandina and the disastrous consequences that can occur when things go wrong with at industrial facilities. And, in his slide presentation, Mr. Ross asserted that the five uses are prohibited by the Comprehensive Plan and none were on the Nassau County Economic Development Board’s list of industries that they want to attract to Fernandina Beach. Click here to view what the various speakers had to say.

LDC 8 LentzAfter the final speaker, Commissioner Lentz recommended that action on the Amendment be tabled so that all of the stakeholders “can sit down and start with the Comprehensive Plan”, and that the PAB re-address the proposed LDC change “line-by-line-by-line”. Commissioner Gass responded by saying she didn’t think “our community could survive much longer at the rate we’re going, we’ve gotten to a fevery pitch…” and “our presentation to the community, the way we’re looking and sounding, the effect it’s having on our economic development, the effect it’s having on our tourism, the effect it’s having on each other.” She then made a motion to deny the Amendment, adding that the Commission could then look at the process of redoing it through the EAR process, “…but let’s put this to bed and move on, so that we can start healing in this community.” In something rarely seen, Commissioner Gass’ motion was seconded by Commissioner Poynter.

LDC 10 Poynter
Commission Tim Poynter

Commissioner Poynter’s comments echoed those of many who spoke in opposition to the Amendment. Saying “he wasn’t interested in a coal transfer facility or a lot of the other things mentioned,” he said he “had problem with the way it has come about and he didn’t think the process was correct.” He acknowledged the major effort that went into creating the Amendment, and respected what those who created it believed in, but nonetheless he had a problem with the process. He said, “This whole thing started with the Port and the Port Master Plan.” “Things have been added, things have been deleted, looking for compromise.” “We need to start over. We need to get the stakeholders in there.” He concluded by saying “he wasn’t interested in getting the City into a major legal battle with our major stakeholders here.”

LDC 2 - Bon
Mayor Ed Boner

Mayor Boner weighed in, siding with Commissioners Poynter and Gass by saying “…you typically look at how do you find a way to do something, not how to restrain use?” He added he “didn’t think this was the right way to go about it” and that “you don’t want to hurt a major stakeholder in the community.” Commissioner Gass added that what she found most disturbing about this was people attacking both mills and the Port as “faceless, nameless entities.” “They are not,” she asserted. “They are men and women who live and work in this community. They have a vested interest in what goes on at both the Port and the mills.” She urged a no vote and said, “Let’s go back to being the friendly, loving community that we have always been before and stop all this finger pointing and name calling…”

Commissioner Lentz also acknowledged the work that went into creating the Amendment and that if the Commission votes to deny the Amendment, staff and the PAB should continue to work together on the Comprehensive Plan and to bring all the stakeholders to the table. She concluded by urging the RockTenn and Rayonier people in the audience to attend the PAB subcommittee meetings on this issue.

LDC 7 Miller
Vice Mayor Johnny Miller

Commissioner Miller then spoke in support of the mills, saying “nobody wants to see the mills go away.” But, he added he hadn’t heard anyone from the mills say they want to move phosphorus or fumigate vegetables with poison gas. He said while the process may have been flawed, he didn’t think there would be any change after going back and doing the process over differently. There still would be no interest on the part of the mills to transfer coal, fumigate with poison gas, move phosphate, refine petroleum, and have passenger ships with their engines running and blowing smoke. He said he was going to vote for the Amendment, regardless of what form it comes back to the Commission. Other communities that have suffered from coal pollution, Miller said, didn’t want their water polluted either, but it happened anyway. He said we have the opportunity to prevent that from happening here. Regarding the idea that all the controversy will keep industry from moving here, Miller questioned who those industries are and where they would be able to locate, other than at the airport. He thought if industries that pollute were looking at Fernandina as a place to locate, they would find we were “anti-coal dust” and wouldn’t want to locate here. He thought that was fine and they should go somewhere else to pollute. He concluded by again expressing support for the mills and protecting the jobs of their workers.

City Manager Gerrity then volunteered, if the Amendment failed, to sit down with both of the mills’ General Managers and work on each of the individual items in the Amendment. The Commission then voted and the Amendment was voted down 4-1, with Commissioner Miller being the only Commissioner to vote for the Amendment.

Editor’s Note: We are providing two letters to our readers. The first from Rayonier that summarizes its position on the LDC amendment, and the second from City Attorney Tammi Bach to Planning and Advisory Board Members copied to city commissioners stating her legal position.  (City Attorney Bach’s letter to appear shortly.)

RB 1
RB 2 Crop

LDC TB 1
LDC TB 2
LDC TB 3

Eric BarteltEditor’s Note: Eric Bartelt retired as a corporate design consultant and moved to Fernandina Beach in 2004. His previously lived in Wisconsin. Since Eric’s arrival in Fernandina Beach, he spends his time volunteering, and playing soccer. We thank Eric for his contributions to the Fernandina Observer.

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Charlene Todd
Charlene Todd (@guest_38198)
8 years ago

If the process for proposing the amendments was flawed, why was it allowed to continue for so long ?

Steve Crounse
Steve Crounse (@guest_38199)
8 years ago

I’m disappointed that the Amendment failed. It means everything stays the same. Our Town and it’s Elected officials will have to fight, line by line each Item on the Ports Master Plan. It also, as Phil Scanlan points out. It emboldens The Port Commissioners and Kinder Morgan. It didn’t even cost Kinder Morgan a Penney. I guess I’m more frustrated about the thought that Chip Ross and Chuck Hall payed $800.00 and put in God knows how many countless hrs. compiling this amendment, modifying it. and at the 11th Hour at this Commission meeting is told “The system is flawed”. Really? Shouldn’t have somebody in our City Government back in Dec. of 2014, said, Hay guys if you want to do this, this is the proper procedure, and handed them an SOP on how to go about it. This isn’t even the same Amendment the PAD looked at and narrowly rejected by 4 to 3. This Amendment should have been Tabled, not Defeated. The biggest Item in the amendment, I think is the approval by the City Manager of new Industry and processes in our City. That needs to be in the hands of the full Commission. The other Point, while i was listening to Rayoniers G.M. C.A. McDonald, and reading his letter on this Blog I could not help but think of The Gilman Paper Co. of St Marys Ga. Circa 1970. The guised threat of negative repercussions and Law suites if the Amendment was approved. Anyway, Google Gilman Paper Co. St. Marys Ga. anyone who is interested in History, corruption,greed, murder, and what a Milltown would look like. All we need is a George Brumley,and Robert Harrison and were good to go.

Betty Philemon
Betty Philemon (@guest_38204)
8 years ago
Reply to  Steve Crounse

Steve, very well written. And you are right, what is the process? Is there one? And what about the comment that Gerrity made about sitting down with the heads of Rayonier and RockTenn to work through these concerns? Do what? Is Mr. Gerrity the right person to get involved in this now? I don’t think so. Is there anybody in charge of the store here? It sure doesn’t look or sound like it.

Dave Lott
Dave Lott(@dave-l)
8 years ago

I agree that Chip should get his $800 back since he followed a legitimate process and the consensus seemed to be the process was “flawed”.
Had the motion by Robin to table been seconded and approved, under Roberts Rules of Order, no further discussion by the commissioners would have been allowed and I’m not sure that any public comment would have been allowed either.
2019 seems so far away although I am sure the process will start sooner than that; but evidence has already shown that KM has no qualms about acting in a less than transparent manner (although perfectly legal). A strong watch must be maintained.
Thanks again to Chip & Chuck and all those that kept this issue at the forefront. The mills and the port are an important part of our economy and we all want them to be successful, but not at the expense and safety of the City’s citizens.

Robert Warner
Robert Warner (@guest_38223)
8 years ago

Tammy Bach did an excellent job analysing the legal side of this issue. Good advice, timely put, and well taken – even though I hate the outcome.

Faith Ross
Faith Ross(@faith-ross)
8 years ago
Reply to  Robert Warner

Interestingly enough Ms. Bach at the last Planning Advisory Board (PAB) meeting stated that there was nothing wrong with the process. To legally deny an amendment to the Land Development Code a reason must be given as to why it is not supported by the Comprehensive Plan. The PAB had the same problem. They didn’t give a reason either. Some members just denied it. Is that the flawed part of the process?
What I found more interesting is that the mill leadership does not want citizens to have the ability to change the LDC. It would set a “precedent”. That means that in the future no citizens would be able to amend the code for any reason, even the reasons of health and safety.
I wish to point out that no country in the world has escaped the devastation of coal dust transported by barges and ships. Their beaches and waterfronts are destroyed by layers of black, grainy, coal dust. Our island’s biggest asset is its beaches. If they are blackened by this substance that is almost impossible to remove, our island economy dies. And I repeat, no country has been able to escape this fate.
To the workers of RockTenn and Rayonier, I wish to remind them that a pulp mill in Jacksonville was turned into a coal transfer facility for ships and barges by Keystone. Keystone bought Jefferson Smurfit because it had the ability to “ship/barge” coal. And before Keystone bought it, the Port Authority of Jacksonville tried to get the same pulp mill by “eminent domain” for the same reason. (Our Port has the power of “eminent domain” in its charter.) Coal transfer is an extremely automated process. A coal facility is run by a handful of people.
The island may lose its beaches, its tourist trade, its ability to participate in its government, and may lose a mill and jobs in a takeover, but a coal company will certainly make some money. You may want to keep the coal on a train, it may save your jobs.

Medardo Monzon
Medardo Monzon(@mmonzon)
8 years ago

Us (city residents) are what makes up the City of Fernandina. So, if the mills want to sue us for protecting our beautiful and fragile island from coal dust, I say bring it on. The mills would in fact be suing the community. Do they really want to continue being welcome members of this community?

By the way, Rayonier is facing SEVERAL class action lawsuits that are very costly and will put their existence at risk. Empty threats? ….very likely.

Ray Roberts
Ray Roberts (@guest_38260)
8 years ago

I have stayed heavily involved in the Island’s environmental future despite a two year detour through Boulder CO and then a relocation to Fort Lauderdale in March of this year.
My focus for the last few months has been my written opposition to the Crane Island development application to build a causeway instead of a bridge to the Island.
I never thought this Port issue would survive public opposition. Was there any public comment opposed to the amendment by anyone not directly connected to the Mills or Port?

My recommendation at this point is to research Federal DOT and EPA regulations concerning the potential activities and how those rules may be used to overcome opposition. Another interesting avenue might be Department of Homeland Security findings on terrorism risks and suggested fixes regarding operation of the proposed facilities, especially collocation with residential properties.
I find it suspicious that these expensive and risky facilities are being stampeded through a small local government dependent on the industries for survival. The lack of sophistication of any small community in protecting itself makes Fernandina appealing to large corporations trying to end run all kinds of opposition.

I encourage everyone to realize that giving up now only encourages the entities trying to push their plans through.

This fight now has to escalate from consensus building to direct confrontation. This is only common sense when you realize that the opposition has no interest in even discussing their plans.

I would encourage the formation of a steering committee to formally organize a non-profit designed to protect the City residents from these endeavors. The legitimacy of a formal organization breaks down many doors closed to individuals.
I congratulate the individuals responsible for putting together a compromise effort. Don’t stop now, regroup and move forward.

Mrs. D Hunter
Mrs. D Hunter (@guest_38410)
8 years ago
Reply to  Ray Roberts

Yes, yes, yes and YES!

And consider finding an attorney to go with you/us into these meetings where “the opposition” always has legal representatin sitting at the head table. As Mrs. Ross pointed out, T. Bach flip flopped on the procedure angle which would have been THE perfect time for our attorney to rise right there in the meeting, call her on it and get into a hardball conversation. The stakes are high, and getting higher.

Bob Weintraub
Bob Weintraub(@rukbat23gmail-com)
8 years ago

The immediate threat is the coal transfer station. This can happen very quickly and would be disastrous to the community.

Robert Warner
Robert Warner (@guest_38295)
8 years ago

Oh – On Boreegaard….
http://www.borregaard.com/

Steve Crounse
Steve Crounse (@guest_38303)
8 years ago

Can anyone say Bio fuel refinery at Rayonier. The thing is a Bio fuel refinery can be sized to any situation. Individuals have built them for their use. The land foot print can be any size. But the bigger the Facility the more high grade lignin produced, which makes for a more cost effective process for producing Bio Fuels. That’s the reason Rayonier is making this Land Use Amendment a big deal. I feel they have big plans at this Facility for Future Development . Let’s say the guy next door to me wanted to put in a Rifle Range, or a Pig Farm, shouldn’t I have the right and the legal tools at my disposal to object to this land use? and shouldn’t I have recourse as a Citizen to stop it. The Supreme Court has told us that “Corporations are people too” Shouldn’t they have to follow the same rules as you and I? Isn’t a Coal Transfer Facility or a Bio Fuel Refinery as obnoxious and dangerous to this Community as a Rifle Range or Pig Farm. As Commissioner Miller said “We don’t want heavy Industry on this Island.” Ms. DiBella at the Janet Adkins Round Table said “I Get It” when talking about the type of Industry that would be suitable for Amelia Island. I didn’t hear any of that from her at the June 16th Commissioner Meeting. I have to wonder if Ms. DiBella as a runner, would enjoy running a marathon, breathing in Coal Dust. or Solvent Fumes from a Refinery.? I think Not. This will not be the end of this Towns struggle for Survival as a “Nice place to live.” Mr. Roberts makes a good point, we need to organize as a Citizens Group. We also need to continue to pressure our Elected Officials to protect the Citizens of Amelia Island from this Insanity and Greed. Our Commissioners were visible intimidated by the response of these Corporations. Nothing good is going to come from the denial of this Amendment. It only solidifies the resolve of the Citizen of Amelia Island against this Corp. Bullying.

Mrs. D Hunter
Mrs. D Hunter (@guest_38312)
8 years ago
Reply to  Steve Crounse

Yes, organization is needed. And I suppose setting up a non profit might be step One, with step Two being a webpage, and step Three being a Paypal donation button sitting front and center. Dr. Ross and Mr. Hall should have their $800 reimbursed. And after repeatedly witnessing Goliath’s well funded/well paid muscle power, our David volunteer citizen efforts will have to meet costs along the way from here on in. Our heroic citizen volunteers have encountered barrier after barrier: the town hall meetings, the commission meetings, the commission committee hearings, the denial of proper process barrier.

As to Ms DiBella, she walked into the commission meeting wearing her mills/port booster badge, she “gets” the basic fundamentals of who hired her, and who pays her, and what her job is: “Laura, the NCEDB staff and Board of Directors are committed to furthering the NCEDB’s mission of bringing new business and jobs to the County, while working closely with existing businesses to expand their operations,” said Dan Camp, current NCEDB Board Chair.

Repeat: “..WHILE WORKING CLOSELY WITH EXISTING BUSINESSES TO EXPAND THEIR OPERATIONS..”

From http://expandinnassau.com/?p=4746

Susie Lawhorne
Susie Lawhorne (@guest_38331)
8 years ago

I have always said that the city falls into two categories: Those who oppose change and those who push it through. Where are those who can manage the change we cannot stop from happening? Where are those who have a plan to benefit the good of the community for the future of the next generation? We need to have a long term plan for both beauty, nature, tourism, industry and sustainability for both. I have lived through bribes, disasters and stupidity on behalf of planning for this City, but isn’t there anyone out there who can help carve out a better tomorrow for all through planning & foresight? My economics professor (and boss at one point) called this the ‘Political Equation’. Basically if you do what is good for the long term, you pay a high price now and get voted out of office. Rarely can a community see the long term and decide to pay the price now.

Take for instance when the south end of the Island wanted to be annexed (years ago when I was in high school) and the city said no, because they did not want to offer amenities. Now they wish they had! That tax money would go a long way now and it would have been worth the price back then. No foresight. And when A1A was needing some service roads to keep traffic flowing, it was just too expensive. Now look what we have: Tons of red lights. Tons of traffic. And what? More expense. Then, some brain dead people decided they want our young people’s recreation area (Main Beach ) to be given over to Condos. Well, maybe there was some interference on that one, but not enough, because we lost the water slide. All of these situations are an example of either pay the price up front, or kick it down the road for someone else to pay later.

Yes, we need to allow industry, but no regulations on expansion of our land locked port affects everyone eventually. Why should everything be driven by stockholders. They probably don’t even live here. Maybe this amendment was not the right way, but we MUST find a way to keep everything in check for the good of all, not just a few!

I am for the port and the mills, but what I am not for is when a small port that was allowed here on a sliver of land, smack downtown, because of need for jobs, decides it’s expansion, land wise and business wise, becomes more important than the people who allowed it here in the first place. The Mills know their bounds. They were basically here first, and we need to give them grace. They helped our town in a dire time of need, and we grew up the town around them. But the Port, because of it’s location to residential housing & Historic tourism (it has already overstepped it’s bounds), needs to be kept in check with a tighter fist.

Please do something. Please find a way to compromise and pass laws that protect the port but the future of Fernandina for our kids sake. Don’t let nothing be done, like we have in the past. That’s not managing anything. Find a way to make it work for all.

Robert Warner
Robert Warner (@guest_38343)
8 years ago
Reply to  Susie Lawhorne

The Port Authority needs to spend a bit of cash and redo it’s plan. Perhaps the City can even contribute.

David Olson
David Olson(@sailorman)
8 years ago

While this attempt was blocked, I hope and believe that its message has gotten through to the leaders of the Ocean Highway Port Authority, Kinder Morgan, RockTenn and Rayonier that we the voters will continue to object to further industrialization and degradation of our quality of life and that we will fight to protect our beloved island and town. Thank you Mr Ross and the Planning Advisory Board.

Medardo Monzon
Medardo Monzon(@mmonzon)
8 years ago

The mills can continue bringing by rail the coal they need. I believe that most City Commissioners as well as Rayonier And RockTenn management underestimate this community’s resolve to prevent coal transfer stations anywhere on Amelia Island. It’s simply not going to happen!